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Implied Consent Law in California

By law, a person who drives a motor vehicle is deemed to have given her consent to chemical testing of her blood or breath for the purpose of determining the alcoholic content of her blood, if lawfully arrested for driving under the influence. Just by driving a motor vehicle, the motorist has consented to giving a sample. If the motorist consents to giving a sample, the sample can be used against her. If the motorist refuses, however, her license shall be revoked by the department of motors vehicle for one year.

There are a few defenses to the implied consent law. For example, let’s assume that the motorist refused to give a sample. One defense is incapacity to refuse due to a medical condition unrelated to alcohol consumption. For example, a motorist refusal to take the breathalyzer test could not be held guilty where she had sustained skull fracture and serious injury to the head during a motorcycle accident which made it difficult, if not impossible, for her to understand implied consent advisory. Furthermore, in determining whether the motorist can or cannot understand the implied consent statute, the judge is allowed to consider evidence of the motorist’s capacity and not confined to the reasonableness of arresting officer’s conclusion that the motorist was capable of refusing to submit to test.

But certain conditions do not make a motorist “incapable.” Self-inducing condition rendering motorist incapable of understanding and refusing to submit to chemical test does not excuse his failure to take test, particularly if resulting from alcohol consumption. Accordingly, a motorist who self-inducing herself to the point of being too drunk to understand proffered information or explanations does not excuse refusal to take chemical test. Moreover, a motorist who is dead, unconscious, or otherwise in a condition rendering her incapable of refusal, is not a defense. Courts normally held that the California Statute is to be interpreted liberally and apply even to those who are unable to refuse. It should be noted that the law treats a medically incapacitated motorists differently from one who is dead, unconscious, or otherwise incapable of refusal. The medially incapacitated motorist can still answer “yes” or “no.” This motorist is excused from her response because due to a medical condition, she cannot understand the implied consent statute. A dead or unconscious motorist has no opportunity to say “yes” or “no.” Furthermore, it is unclear if the motorist could or could not understand the implied consent statute; as such, the law assumes that she consented.


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